Amid Court Challenges, Legislators Work to Protect Prescription Privacy

Despite ongoing court challenges, states are moving ahead to protect the privacy of physicians' drug prescribing-history. Most recently, the Washington State Senate passed SB 6241, which prohibits the sale or use, for marketing purposes, of data detailing which drugs a physician prescribes and how often -- a practice called data-mining. In 2006, New Hampshire became the first state to ban data-mining for marketing purposes. 

Prescribing-history is a favorite tool of the drug industry to tailor marketing to medical professionals, jacking up prescription drugs costs in the process. Such steps are more than prudent, given that 90% of the drug industry's shocking $21 billion marketing budget is directed towards doctors. 

The New Hampshire law and those that have followed it, do not restrict legitimate uses of prescriber data, such as health care research, utilization reviews by providers and insurers, and law enforcement. Vermont and Maine soon followed New Hampshire with their own data-mining bans in 2007. Vermont set up a process whereby physicians could "opt-in" and allow the prescribing history to be used for marketing purposes and Maine established a less restrictive system that allows physicians to "opt-out" of the use of their history for marketing purposes. 

All three laws are facing legal challenges from the industry, which is arguing that the bans restrict their commercial free speech. Advocates, including the National Legislative Association on Prescription Drug Prices, have filed briefs countering the industry's free speech claims and asserting the power of states to regulate the use of similar consumer data. A legal analysis reported by Community Catalyst's Prescription Project includes advice on what states can do to preempt industry lawsuits and strengthen data-mining bans.

This year, at least 12 other states and the District of Columbia have proposed or enacted similar bans on data-mining for marketing purposes. In addition to the Washington State Senate, the Vermont House defeated an effort to weaken the state's existing data-mining ban in the face of the industry court challenge.

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